April 3, 2014

Serial killer hoping SCOTUS will be troubled by execution drug secrecy in Texas

As highlighted in this AP article, a legal challenges based on execution drug secrecy is now before the Supreme Court after a Texas death row defendant has won and then lost on lower courts in his effort to block his execution. Here are the basics:

Attorneys for a serial killer asked the U.S. Supreme Court to halt his execution set for Thursday in Texas as they challenge that state's refusal to release information about where it gets its lethal injection drug.

Lawyers for Tommy Lynn Sells made the plea after a federal appeals court allowed the execution to stay on schedule. A lower court had stayed the execution Wednesday, ordering Texas to reveal more information about its drug supplier, but the ruling was quickly tossed on appeal. "It is not in the public interest for the state to be allowed to be deceptive in its efforts to procure lethal injection drugs," Sells' attorneys told the high court.

The appeal was one of two separate issues pending before the justices. Another before the court since last month asked for the punishment to be stopped to review whether Sells' legal help at his trial was deficient, and whether a court improperly denied him money to hire investigators to conduct a probe about his background.

Sells, who was sentenced to death for fatally stabbing a 13-year-old South Texas girl in 1999, claims to have committed as many as 70 killings across the U.S. The 49-year-old is scheduled to be lethally injected Thursday evening in Huntsville. Sells' attorneys argue that they need to know the name of the company now providing the state with pentobarbital, the drug used during executions, in order to verify the drug's quality and protect Sells from unconstitutional pain and suffering.

But 5th U.S. Circuit Court of Appeals sided with Texas prison officials, who argued that information about the drug supplier must be kept secret to protect the company from threats of violence. It also found that the stock of the pentobarbital, a powerful sedative, falls within the acceptable ranges of potency. The court said that had Texas wanted to use a drug never used before for executions or a completely new drug whose efficiency or science was unknown, "the case might be different."

It's unclear how the Supreme Court would rule. Last month it rejected similar arguments from a Missouri inmate's attorneys who challenged the secrecy surrounding where that state obtained its execution drugs, and the condemned prisoner was put to death....

A batch of pentobarbital that Texas purchased from a compounding pharmacy in suburban Houston expired at the end of March. The pharmacy refused to sell the state any more drugs, citing threats it received after its name was made public. That led Texas to its new, undisclosed suppler.

The court case challenging the state's stance also included 44-year-old Ramiro Hernandez-Llanas, who is scheduled for execution next week. But the 5th Circuit ruling affected only Sells. Maurie Levin, an attorney for the inmates, said Sells' case would be appealed to the U.S. Supreme Court. Levin said the lower court ruling, which had ordered the Texas Department of Criminal Justice to give defense attorneys details about the drug supplier and how the drug was tested, "honors the importance of transparency in the execution process."

If Sells' execution is carried out Thursday, it would be the fifth lethal injection this year in Texas, the nation's busiest death-penalty state.

Sells had dubbed himself "Coast to Coast," a nod either to his wandering existence as a carnival worker or to his criminal history. Court documents said he claimed as many as 70 murders in his lifetime in states including Alabama, California, Arizona, Kentucky and Arkansas. "We did confirm 22 (slayings)," retired Texas Ranger John Allen said this week. "I know there's more. I know there's a lot more. Obviously, we won't ever know."

UPDATE:This AP story reports that Sells "was put to death Thursday in Texas after the U.S. Supreme Court rejected his lawyers' demand that the state release information about where it gets its lethal injection drug."

Comments

This, to me, again comes back to the holding from Baze that before a stay is to issue the condemned actually needs to come forward with evidence that what the state intends to do would violate the constitution. Even without knowing the exact supplier (or necessarily even what agent will be selected) we now have a great deal of experience that the states do in fact carry out this portion of executions in a conscientious manner. I think we can be confident that Texas will not suddenly substitute a huge dose of anti-freeze or something else equally ridiculous just for the hell of it.

Posted by: Soronel Haetir | Apr 3, 2014 4:50:21 PM

Soronel -

Nailed it. You make as good or better arguments than half the lawyers I spent 18 years opposing in the federal courts of appeals.

Posted by: Bill Otis | Apr 3, 2014 4:57:20 PM

So long as Sells and his attorneys are told the contents of the execution drug, I don't see the relevance of which particular company supplied it. Would they need to know which power company supplied the electricity, if he were sent to the electric chair? Seems transparently bogus to me.

Posted by: Curious | Apr 3, 2014 4:57:58 PM

If Baze puts up a high test of intent and evidence, fine, but bottom line, we don't actually have "long experience" with this specific thing -- dealing with shortages is a relatively new thing in this context, and the cutting of corners or desire for secrecy here (whatever the justification) is not just normal practice. Which is starting to concern judges and multiple justices of USSC. In part, I gather, since it is fairly "unusual" which is a red flag. Again, precent might make this besides the point, but it is far from "ridiculous" to worry about what is being done here. Even if this specific means of relief is not appropriate. But, the tone goes beyond that.

The Supreme Court justices that have expressed concerns are precisely the same justices that were in dissent in Baze itself, their views now have about as much relevance to the matter as Thomas does on the question of what activity can be reached under the ambit of regulating interstate commerce. In other words, no relevance whatsoever.

Posted by: Soronel Haetir | Apr 3, 2014 6:38:16 PM

Only justice left that dissented in Baze is Ginsburg. Apparently, SCOTUS has no problems with the secrecy laws. They denied 2 petitions for cert and stays of execution.

That is not the point. No one has sympathy for any serial killers (unless they are Dexter, aka The Sate) especially ones that kill little girls. But rumor has it Texas got the drug from a Mexican drug cartel in exchange for....

"As the drug began flowing into his arms inside the death chamber in Huntsville, Sells took a few breaths, his eyes closed and he began to snore. After less than a minute, he stopped moving. He was pronounced dead at 6:27 p.m. CDT - 13 minutes after being given the pentobarbital."

So all this baloney about severe pain was just that -- baloney. Not that Joe and his comrades actually care about the non-existent pain. What they care about is the murderer, and, specifically, stopping the murderer's execution at any price.

There never was any pain. But that won't stop them from the identical allegation next time.

This is the final paragraph from the AP: "Among his other confessions was the slaying of an Illinois family in 1987. Those victims included Ruby Dardeen, who was eight months pregnant. Her fatal beating forced her to prematurely give birth. The newborn was killed along with her 3-year-old sibling."

The guy kills a pregnant mother and her 3 year-old. And then the Condescension Squad of abolitionists wants to tell us that it's the majority of the American people who favor the DP who are "barbaric."

Yikes.

Posted by: Bill Otis | Apr 4, 2014 12:17:58 AM

Joe --

"...the cutting of corners or desire for secrecy here (whatever the justification) is not just normal practice. Which is starting to concern judges and multiple justices of USSC."

Not even one Supreme Court Justice dissented from either of tonight's orders allowing the execution to go forward. Where there wasn't a single Justice, where are you getting "multiple justices?"

Where were "multiple justices" tonight? Asleep?

Posted by: Bill Otis | Apr 4, 2014 12:33:55 AM

The end justified the means? An unethical and dangerous path for the law, whatever your views on the death penalty. Another failure of the current Supreme Court to uphold the basic tenets of the Constitution.

Mankind has been using anesthesia since Borgognoni in the 13th century. It is a pretty far-fetched claim that we cannot properly and painlessly apply it in an execution 8 centuries later.

Posted by: TarlsQtr | Apr 4, 2014 10:59:01 AM

Seem to recall the U.S. Supreme Court in an inverse Commerce Clause case ruling that there was no constitutional right to public disclosure so a state could restrict what information it disclosed and to whom(in that case, restrict the statutory right to compel disclosure to residents of the state).

So if there is no First Amendment right to compel disclosure of government information and no basis to believe that any of the state's chemicals actual cause substantial and unwarranted pain (as required for even a colorable claim under the Eighth Amendment), where is the constitutional violation in the State's desire to protect its suppliers from economic retaliation.

Posted by: tmm | Apr 4, 2014 11:02:50 AM

peter --

"The end justified the means?"

When the USA and the UK went to war with the Nazis to extinguish the Fascist empire, was that an example of the end justifying the means? Do you think our participation in WWII was morally sound? If the end does not justify the means, what does justify them?

Posted by: Bill Otis | Apr 4, 2014 11:04:24 AM

As a lawyer, you are aware that:
Though the lawyer’s personal moral code likely finds murder immoral and reprehensible, ethics demand the accused client be defended as vigorously as possible, even when the lawyer knows the party is guilty and that a freed defendant would potentially lead to more crime.
Similarly, the State. through either or both its legislative and Judicial officials, may find execution morally acceptable, ethics requires that the victim of execution and the public (to whom the legislature and judicial officials are ultimately answerable), are entitled to complete transparacy with regard to the practices and efficacy of all procedures employed - to ensure these meet the expected standards and protocols both enshrined in law, and to ensure that execution is achieved in a humane manner. If the State alters its practices, in this case by witholding information it previously gave freely, then this represents an unacceptable and unethical withdrawal of transparacy. It is a breach of ethics previously understood by all as appropriate and right.
Bill - your example is so far removed from relevance that I choose to ignore it

Posted by: peter | Apr 4, 2014 11:43:54 AM

peter: "The end justified the means? An unethical and dangerous path for the law ..."

"The raven chides blackness."

END JUSTIFIES MEANS also known as
THE PREVAILING ETHOS OF ANTI-DEATH PENALTY ADVOCATES

Just a taste:

-------------- “Attorneys insist the name is needed to verify the quality of the drug and keep the inmate from unconstitutional pain.”
-------------- “This article proposes a novel basis for a challenge to the federal death penalty's … federal interference with a state law ...”

-------------- “The state office that defends people facing death-penalty cases has urged defense attorneys to raise a claim of racial bias in all potential capital cases,
which prosecutors say will slow the justice system. … Such motions have been filed involve Joshua Stepp, a white man charged with sexually abusing and murdering
his white 10-month-old stepdaughter, and Armond Devega, a black man charged in a robbery spree that left two blacks dead."

-------------- “I cannot in good conscience voluntarily expose a Rhode Island citizen to a potential death-penalty prosecution … “Rhode Island executed an innocent man in the 19th century [not remotely true, ed.], and I [the governor] oppose the death penalty.”

-------------- “They argued that Stewart had a “diminished capacity” to form intent, because he … suffered from depression and was taking prescription anti-depressants.
The defendant’s mind was further addled because he had reportedly taken the sleep aid Ambien in a higher-than-recommended dose which had turned him into a
“lethal sleep-walker.” … [according to] defense lawyer Jonathan Megerian, their client could not form the intent required to prove the capital offense of first
degree murder on any of the [eight] killings.”

-------------- "Although Cuyahoga County Prosecutor Timothy McGinty sought clemency for Slagle …"McGinty and Slagle’s attorneys had cited his age—
at 18, he was barely old enough for execution in Ohio — and his history of alcohol and drug addiction."

-------------- "Just one aspect of the waiting bothers her. Raley's lawyers have tried to forestall execution with..[t]he jury never heard enough about his troubled, tortured childhood..."It doesn't make sense." ... "But Raley's supporters say his case is an example of the state spending too much time and
money on the death penalty. The American Civil Liberties Union cites his mental disability and costly appeals .. "He's not the worst of the worst,"
said Robert Bacon, one of Raley's lawyers. ... run[ning] out of legal options ...[a]fter two decades of appeals ..."

I am all for transparency whenever possible. The problem is that you want it for no other purpose than going "Mozilla" on the suppliers.

Both sides are served just as well by an impartial firm testing the chemicals for potency and certifying them. The name of the supplier is not needed. Whether the drugs came from CVS or Rite Aid and were manufactured by Pfizer or Bayer is irrelevant.

Posted by: TarlsQtr | Apr 4, 2014 12:26:19 PM

TarIsQtr:
"Irrelevant" is not in a legal machiavellian's vocabulary for appeals;
it reappears de novo when a foe brings-up a criminal's past behaviour.

[Consider the probative value/substantive relevance of the arguments in my prior post.]

Posted by: Adamakis | Apr 4, 2014 12:41:09 PM

TarlsQtr --

"I am all for transparency whenever possible. The problem is that you want it for no other purpose than going 'Mozilla' on the suppliers."

Mozilla is the best it will be. Try firebombing. Kathy Boudin is still around, teaching at Columbia.

Posted by: Bill Otis | Apr 4, 2014 12:57:56 PM

"The Supreme Court justices that have expressed concerns are precisely the same justices that were in dissent in Baze itself, their views now have about as much relevance to the matter as Thomas does on the question of what activity can be reached under the ambit of regulating interstate commerce. In other words, no relevance whatsoever."

Breyer was not "in dissent" in Baze. Only ONE justice on the Court now was "in dissent" in Baze. The plurality opinion also was concerned with a specific matter -- the specific procedure used, not the current concern here for secrecy.

So, other than you being partially wrong here (scorn or dismissal works better when you have your facts clear), the "relevance" of Baze itself is somewhat unclear. Kennedy very well might at some point find something like this troubling. His repeatedly has shown a concern for appearances and so forth in criminal justice matters. He's fickle.

Bill Otis noted that justices didn't dissent. Yes, justices don't dissent each and every time from denials unless their names are "Brennan" and "Marshall." All the same, the justices already flagged this is a concern for them. As it was for various lower court judges. As to the specifics, there is a citation of a test for potency, which is noted in the opening post as well. This doesn't suddenly mean we shouldn't be "worried" about the various cases where secrecy and other issues have been flagged, including by judges. Being "worried" doesn't mean the person should win.

"Though the lawyer’s personal moral code likely finds murder immoral and reprehensible, ethics demand the accused client be defended as vigorously as possible, even when the lawyer knows the party is guilty and that a freed defendant would potentially lead to more crime."

That is a wonderfully succinct summary of why what passes for legal
"ethics" need reform.

"Similarly, the State. through either or both its legislative and Judicial officials, may find execution morally acceptable, ethics requires that the victim of execution and the public (to whom the legislature and judicial officials are ultimately answerable), are entitled to complete transparacy with regard to the practices and efficacy of all procedures employed..."

What case so holds? Exactly that argument got zero votes on the SCOTUS last night. Do you know better than all nine?

"...to ensure these meet the expected standards and protocols both enshrined in law, and to ensure that execution is achieved in a humane manner."

Yes, you want to rewrite the language and holding of Baze. I get it. Of course that's not the point. The point, as we both know, is to provide grist for the unending litigation mill, since NO METHOD EVER TRIED has been satisfactory to you. Do you deny it?

"Bill - your example is so far removed from relevance that I choose to ignore it."

A wise choice, since what it shows is that the old bromide about means and ends, while it sounds high-minded (your specialty), grunts and groans when put to a tough test.

Posted by: Bill Otis | Apr 4, 2014 1:08:59 PM

TarlsQtr -
The source of the drugs being used is relevant because the primary licence holders of manufacture, or the actual manufacturer may have instructed all distributers that none should be supplied to entities for the purpose of state killing (executions). Manufacturers and licence holders are entitled to ensure that their products are being used for the intended purpose - on both ethical terms and on commercial terms to protect their reputation in the market. On the other hand, if back street or non-approved manufacturers are being used, then their activities are again a threat to the commercial interests of legitimate manufacturers and suppliers. It is not in the long term interests of organisations operating outside of these parameters to ignore this ethical argument since they should have learned by now that not even Governments can keep secrets for long. The truth will out. They risk short term gain for longer term pain.

Posted by: peter | Apr 4, 2014 3:49:09 PM

Bill - "That is a wonderfully succinct summary of why what passes for legal
"ethics" need reform."
There might be a few raised eybrows at your comment, even amongst your "friends", to this comment. It seems you want not only to reform legal ethics but to tear apart the entire legal structure of adversial justice.
Perhaps you have taken to a sneaking admiration for some foreign judicial practices that largely dispense with courtroom juries and rely on judge-led advocacy. Interesting.

Posted by: peter | Apr 4, 2014 3:57:15 PM

as far as I'm concerened if the state is hiding information then they are in the wrong. Of course that doesn't toss the sentence. how they kill him has NOTHING to do with why they are doing it.

loved this tarls!

"I am all for transparency whenever possible. The problem is that you want it for no other purpose than going "Mozilla" on the suppliers."

of course that is the whole rational behind the sex offender registry as well. public embarrassment and harassment. Why else would states now be stamping "SEX OFFENDER" across the front of the license in 2 inch bright letters. When it's all on the back of the license in the magnetic strip for any govt agent to access?

I really loved this. It hit it right on the head.

"Both sides are served just as well by an impartial firm testing the chemicals for potency and certifying them. The name of the supplier is not needed. Whether the drugs came from CVS or Rite Aid and were manufactured by Pfizer or Bayer is irrelevant."

Posted by: rodsmith | Apr 4, 2014 4:22:10 PM

peter --

So you DON'T think legal ethics could use some reform???!!!

Interesting.

Posted by: Bill Otis | Apr 4, 2014 4:56:50 PM

Isn't it funny--Joe can't articulate a legal basis for a stay of execution.

Posted by: federalist | Apr 4, 2014 11:09:26 PM

federalist --

I don't Joe has much interest in providing a legal basis for a stay. That's because he's not interested in a postponement. He's interested in a cancellation. He is of the bizarre view that this grotesque imitation of a human being should escape the punishment a unanimous jury voted for him.

Posted by: Bill Otis | Apr 5, 2014 2:48:42 AM

Peter: The adversarial system is just another lawyer superstition that serves their need for government make work jobs. It

1) It has zero validation as a method to establish anything. See the high exoneration rate on death row, after $millions were spent.

2) It comes from the disputation method of Scholasticism, a church philosophy made by monks. The adversarial system, the church looking court, the priest looking judge robes, the altar like elevated bench, the standing up and sitting down, the oaths all violae the Establishment Clause imposing Catholic church ritual and superstition on our secular nation. It is as treasonous as seeking to impose Sharia law would be. I read the Sharia book and liked 90%. It is fairer, more streamlined, maintains low crime rate even in very poor countries. It does not do so by harsh punishments of its reputation.

3) In 95% of cases, the adversarial system is not used, as the plea bargain determines outcomes. So it is nearly marginal and irrelevant.

Supremacy - the problems with plea bargaining are well rehearsed but are well summed up in this statement:
"The plea-bargaining stage, however, does not fit the adversarial model,' nor is its goal the same. It is therefore unclear what duties, if any, prosecutors have to defendants involved in plea bargaining, or to the legal system, other than to believe that a defendant is guilty before accepting a plea." from Fred C. Zacharias, Justice in Plea Bargaining, 39 Wm. & Mary L. Rev. 1121 (1998) (click my name for pdf)

As if the odds aren't already stacked in favor of substantially unaccountable and unregulated prosecutors, at least with regard to their conduct in any particular case, plea bargaining is the last straw in ensuring Justice for the defendant isn't even on the agenda.

As you would know if you actually practiced law, the real story with plea bargaining is that defendants demand it.

My own preference would be that they stand up for their "innocence" and demand all their rights, starting with the right to trial. I have said this many times on this blog.

The reason they don't is that THEY DON'T WANT A TRIAL. That is not the prosecutor's doing. The defendant himself knows what he did better than anyone else, and is understandably less than eager to have it all spilled out at a public trial.

If a prosecutor ever took the position that he would refuse to offer bargains, there would be a crescendo of letters from defense counsel to his boss saying that he'd lost his mind and should be fired.

Posted by: Bill Otis | Apr 5, 2014 11:13:10 AM

Bill - as you imply, there are all sorts of abuse opportunities that arise, and sometimes taken, in a regime of plea bargaining. There are perfectly good alternatives to arrive at a reduction of sentence if someone wishes to plead guilty and thereby save the court time and money, which could be standardized in a compulsory credit % arrangement in law. An innocent person shouldn't have to fear the consequences of a trial and a prosecutor shouldn't indulge in over-charging to satisfy his own prejudices. Unfortunately, both are too often true. That the whole sentencing regime operates at levels massively overstated against international norms, creates the fear you identify in both innocent and guilty parties. This is a problem of your own making.

Posted by: peter | Apr 5, 2014 12:52:04 PM

peter --

"An innocent person shouldn't have to fear the consequences of a trial and a prosecutor shouldn't indulge in over-charging to satisfy his own prejudices."

He shouldn't "over-charge" for any reason at all, but charging what the evidence fairly shows was the defendant's actual conduct is hardly "over" charging.

As for an innocent person's having to fear the consequences of a trial, Justice Frankfurter, writing for the Court, answered that many, many years ago in Cobbledick v. United States: "Bearing the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship."

Posted by: Bill Otis | Apr 5, 2014 5:11:06 PM

This comments says it all about this site and the DP: It's unclear how the Supreme Court would rule. Just a week earlier it tossed the same argument yet these slip n fall lawyers continue to file the same appeal. Whats worse is the federal judge who actually issue a stay before the 5th circuit disposed of the farce. The rapib ANTI-DP stalinists brought this drug situation on themselves...first picketing and threatening European companies and now US ones...this is a joke...no wonder why states are making the info secretive. I encourage all DP states to. Get on with the hundreds of executions we need every year to start emptying death row.

Posted by: DeanO | Apr 5, 2014 7:39:39 PM

Bill, Joe is a master of the tactics of the non-erudite. He's got some native intelligence, but a lot less than he thinks. He'll point to an argument (or a vote to stay an execution) and then ask (rhetorically) why you aren't hand-wringing just like he is. What is utterly pathetic about the whole thing is that it presupposes some sort of deep wisdom on the part of the likes of Ginsburg and the other members of the reconstituted Gang of Four. The reality is that it's a vote. It's the exercise of raw naked power. Defending it is far beyond Joe's ability (or anyone's for that matter). Instead we get some syrupy, vapid appeal to authority. One should have more respect for oneself--instead he's just an intellectual groupie, waiting to hear the wisdom from on high.

On some level, Joe knows this. Hence his reluctance to actually defend any of his positions.

Posted by: federalist | Apr 5, 2014 9:26:17 PM

Peter: Prosecutors only prosecute a tenth of all crime. So they can be selective for the slam dunk cases, as in, "Here is the video recording, isn't that you in it?" or for cases that will make them famous, as in cases of celebrities. Celebrities are well represented by aggressive counsel. If there are innocent people bullied into a plea, the fraction is marginal, like the error rate in any other human activity.

The adversarial system and its child, the plea bargain (also from Inquisition of the Catholic Church) causes the biggest problems for the public, not the defendants. It downgrades incapacitation, and misclassified ultra-violent predators as non-violent offenders, at the top of the list of early release candidates. (Original Plea bargaining: You have blasphemed by eating meat on Friday (a violation of a completely made up rule, with no foundation in any Gospel, just lobbying and payoffs by the fishing industry). You must go to the stake. We can also offer you an alternative, by giving your estates to the Church, we may be able to avoid the stake. Ding, the Sistine Chapel gets funded.)

That is why I have strongly urged that early release decisions be based on the indictment charges, not the adjudicated ones. Because early release is an administrative decision, and not a judicial one, it can be based on anything the warden pleases. So there is no violation of due process by using facts from outside the tribunal sending the defendant to prison.

If any lawyer disagrees, citations appreciated. Can early release be based on facts from outside the trial or plea bargain?